QUERRY:Non-Receipt of IT Notice

[P.D.RUNGTA]

QUERRY:Non-Receipt of IT Notice

Dear Colleagues,

I have come across a case where the income tax department says that it has duly served a notice on an assessee to appear before them, but the assessee never received the notice. Hence he could not appear before the department and the issue got decided ex-parte with imposition of penalty. As the assessee is not in possession of the original notice (which had not been served at all), the appellate authority is not inclined to accept the appeal.

I'd like to be enlightened about the provisions, if any, under which the department may be compelled to produce the receipted copy of the notice to enable the assessee to verify the signature (with relevant case law). Please also advise whether the appellate authority is
empowered / bound to issue any order to the assessing officer in this context. Is it mandatory that the original notice should be attached along with the relevant documents and form for filing appeal or is it a customary practice? If any citation may be referred, that'd immensely help.

Thanks & regards,

CA. R. S. Mallick

REPLY:1

Dear Mr Mallick,
There is no requirement to attach any notice for filing of appeal to any appellate authorities.
In your case it seems that the order has been passed by the AO and you want to prefer an appeal to the CIT.If so,please go ahead and file an appeal within 30 days from the receipt of the order of assessment by you before the cit appeal for your quantam appeal. If the same is delayed you may file the same with a condonation petition.
At the time of hearing if you are granted the condonation for delay your appeal shall be admitted.There is a veryfair chances of your appeal being admiteed belatedly if you can show a reasonable cause for delay in filing your appeal.
Same is the case for your penalty order also.
In your appeal you may take the first ground to be non issuance/service of notice and thereby the order itself may be challenged.By doing this the onus shall shift up on the department to prove the service of notice within time.
Simulateously you may also apply for the certified copies of the order sheet made by the AO along with the certified copies of the tear off slips which are required to be signed at the time of sevice of the notice.
You may also ask for the same under RTI act.The department is bound to provide the same in both the case.
The above is equally applicable for your penalty order also.
Please do not delay the matter by non filing of appeal on the ground that you have not been served the notice for making assessment/penalty.This may complicate the case and you may not be able to fight the same in the right perspective.
Even non issuance/non receipt of notice is to be challenged and disputed before the appellate authority coupled with the grounds on which the additions have been made by the AO.
The additions made by the AO may be challenged taking alternative ground that if issuance of notice fails you may fight your case on merit.
With best wishes

Rajesh Jain,
R.K.Jain & Company
Company Secretaries,
39B Kankurgachi 2nd Lane,
3rd floor,
Kolkata-700 054
Ph:23628632/32939634
Mobile:9433088306

REPLY:2

As  of now, since u have not received any demand notice u/s. 156, nothing can be claimed by the department.
So, where's the question of appeal ? when no assessment order/ demand notice received by the assesse.
It's a settled case, a demand not served is no demand.

Moreover, for filing appeal,. demand notice and assessment order is required, not the initial notice.

regards,

Rudra   rudram...@yahoo.com

REPLY:3

Dear Mr. R S Mallick,

The department is bound to produce proof of delivery.

Regards

M L Gupta
9836189880

 

With Regards:-

CA.RUNGTA PRAMOD DAYAL
M.COM., LL.B.,AICWA.,FCA.,DISA (ICAI)
P D RUNGTA & CO.,
Chartered Accountants

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[SDA Services]

Now a days dept official just claim that Notice was affixed at the assessees address by the IT Inspector in time & a report from inspector is put in the file in support.

 

is there any remedy before the assessee to counter it

Rgds
CA.Anil Agarwal
33/1 N S Road, 332 Marshall House
Kolkata-700001
Landline:033 22102227
Fax : 033 22107539

[P.D.RUNGTA]

QUERRY:Non-Receipt of IT Notice Dear Colleagues, I have come across a case where the income tax department says that it has duly served a notice on an assessee to appear before them, but the assessee never received the notice. Hence he could not appear before the department and the issue got decided ex-parte with imposition of penalty. As the assessee is not in possession of the original notice (which had not been served at all), the appellate authority is not inclined to accept the appeal. I'd like to be enlightened about the provisions, if any, under which the department may be compelled to produce the receipted copy of the notice to enable the assessee to verify the signature (with relevant case law). Please also advise whether the appellate authority is empowered / bound to issue any order to the assessing officer in this context. Is it mandatory that the original notice should be attached along with the relevant documents and form for filing appeal or is it a customary practice? If any citation may be referred, that'd immensely help. Thanks & regards, CA. R. S. Mallick

Reply 5 By  CA Dev Kumar Kothari , Kolkata- 33   9830621573   There seems some confusion in your write-up- first you have mentioned about notice of hearing not received leading to non appearance and ex-parte  assessment.   Then perhaps you are referring to Demand Notice, which is required to be filed with Form 35.    In case D/N is alos not received you mention in form 35 the date of service of order and against service of D/N you mention - not served.   If D/N is not served, the A.O. cannot collect the demand.   Notice of hearing is not required to be filed with appeal memo, particularly when it is not served, how you can provide even with written submission?.    Allegation that it is not served on assessee can be made out in statement of facts, grounds of appeal and written submission. The appellate authority can be requested to call assessment records and to check if notice was factually served or not. A copy of written submission before CIT(A) can be filed with the A.O. with request to produce evidence of service of notice, if the A.O. fail to do so, the appellate authority can presume that the A.O. has not served notice or at least he is not intereseted to challenge the allegation of assessee that assessee has not received notice.   Other readers are requested to send their experience to share the same.   CA Dev Kumar Kothari , Kolkata- 33   9830621573

Dear Mr. R S Mallick,The department is bound to produce proof of delivery.

Regards M L Gupta 9836189880

REPLY:1

Dear Mr Mallick, There is no requirement to attach any notice for filing of appeal to any appellate authorities. In your case it seems that the order has been passed by the AO and you want to prefer an appeal to the CIT.If so,please go ahead and file an appeal within 30 days from the receipt of the order of assessment by you before the cit appeal for your quantam appeal. If the same is delayed you may file the same with a condonation petition. At the time of hearing if you are granted the condonation for delay your appeal shall be admitted.There is a veryfair chances of your appeal being admiteed belatedly if you can show a reasonable cause for delay in filing your appeal. Same is the case for your penalty order also. In your appeal you may take the first ground to be non issuance/service of notice and thereby the order itself may be challenged.By doing this the onus shall shift up on the department to prove the service of notice within time. Simulateously you may also apply for the certified copies of the order sheet made by the AO along with the certified copies of the tear off slips which are required to be signed at the time of sevice of the notice. You may also ask for the same under RTI act.The department is bound to provide the same in both the case. The above is equally applicable for your penalty order also. Please do not delay the matter by non filing of appeal on the ground that you have not been served the notice for making assessment/penalty.This may complicate the case and you may not be able to fight the same in the right perspective. Even non issuance/non receipt of notice is to be challenged and disputed before the appellate authority coupled with the grounds on which the additions have been made by the AO. The additions made by the AO may be challenged taking alternative ground that if issuance of notice fails you may fight your case on merit. With best wishes Rajesh Jain,

REPLY:2

As  of now, since u have not received any demand notice u/s. 156, nothing can be claimed by the department. So, where's the question of appeal ?

when no assessment order/ demand notice received by the assessee..

It's a settled case, a demand not served is no demand.

Moreover, for filing appeal,. demand notice and assessment order is required, not the initial notice. regards,Rudra   rudram...@yahoo.com

 

With Regards:-